OPINION ISSUED SEPTEMBER 8, 1999
DIVISION OF HIGHWAYS
Claimant appeared pro se.
Xueyan Zhang, Attorney at Law, for the respondent.
Claimant brought this action for vehicle damage which occurred
as a result of an encounter with a hole while traveling northbound
on Route 2 from Point Pleasant, which is a road maintained by the
respondent in Mason County. The Court is of the opinion to make an
award for the reasons more fully stated below.
The incident giving rise to this claim occurred on April 3,
1998 at approximately 2:15 p.m. Following work, claimant was
traveling northbound on Route 2 to go home. The day in question
was clear and there was no oncoming traffic on the road. Claimant
was traveling the speed limit, which was fifty-five miles per hour.
Unfortunately, claimant's vehicle hit a previously patched hole on
the right berm of the road that had become uncovered. Claimant
knew of the hole's existence, but on April 3, 1999, was unable to
avoid hitting the hole. Apparently, the hole on the right berm of
the road had eroded part of the road. The hole was approximately
four inches wide and six to eight inches deep. The resulting
damage to claimant's 1995 Monte Carlo was two bursted tires and a
bent wheel rim. Claimant's loss totaled $277.58. Claimant had
collision insurance with a deductible of $250.00.
The well established principle of law in West Virginia is that
the State is neither an insurer nor a guarantor of the safety of
motorist upon its roads. Adkins vs. Sims, 130 W.Va. 645; 46 S.E.2d
81 (1947). In order to hold respondent liable for road defects of
this type, claimant must prove that respondent had actual or
constructive notice. Pritt vs. Dept. of Highways, 16 Ct. Cl. 8
(1985); Harmon vs. Dept. of Highways, 16 Ct. Cl. 127 (1986).
In the present case, the evidence established that the
respondent was put on notice about the hole, especially after the
claim Jason L. Shaffer vs. Division of Highways (CC-98-149), which
was an accident at the exact same location in question about two
months prior to claimant's April 3,1999, accident. The Court is of
the opinion that respondent did not take reasonable steps to ensure
the safety of Route 2 in Mason County. Respondent did have ample
opportunities to make repairs and should have been more vigilant.
Consequently, there is sufficient evidence of negligence to base an
award. However, claimant is entitled to an award for her loss, to
the extent of the deductible feature on her collision insurance.
Therefore, in view of the foregoing, the Court hereby make the
Award of $250.00